Q: What is the most challenging case you have worked on and what made it challenging?

A: My most challenging recent case was an administrative environmental case brought by the U.S. Environmental Protection Agency against a small used-oil supplier that was accused of handling alleged hazardous waste under the Resource Conservation and Recovery Act. The EPA asserted that use of the material at issue as a substitute for carbon in feedstock for a blast furnace was a violation of RCRA because the material was a “by-product” under the solid waste regulations and was being “burned for energy recovery.”

There were three significant challenges: most of the critical information regarding the material at issue was held by a third-party supplier, and discovery in the administrative context is extremely limited; the admissibility of hearsay under the administrative rules allowed the EPA to admit documents for which it had no foundation or context; and the inflexibility of the RCRA penalty policy allowed the EPA to seek an outrageously large penalty even where no evidence of knowing conduct existed.

The fact that the material was provided to the client on bills of lading, with attached material safety data sheets, and was treated by all parties as a useful product, and not a waste, did not impress the EPA.

Rather, the EPA relied on a rigid and hypertechnical interpretation of the solid waste regulations to assert liability and demand a seven-figure penalty. A decision is pending.

Q: What aspects of your practice area are in need of reform and why?

A: Cleanup of contaminated sites under the Comprehensive Environmental Response, Compensation and Liability Act (aka Superfund) is hopelessly mired in bureaucracy and overly complex regulations. The EPA is not held accountable for not efficiently facilitating cleanups even where parties are willing to act quickly.

Too much emphasis is placed on adherence to the CERCLA multistage process for investigation, analysis and eventual remediation rather than focusing on common-sense solutions to environmental remediation challenges, which greatly increases the time and costs involved with cleaning up sites.

Q: What is an important issue or case relevant to your practice area and why?

A: The Burlington Northern v. United States case dealing with “arranger” liability under CERCLA, and apportionment of damages continues to influence lower courts confronted with the complex legal and factual issues of assigning shares of liability to potentially responsible parties.

Under Burlington Northern, the concept of allocation of liability among parties based on reasonable evidence was acknowledged by the U.S. Supreme Court to be a viable concept, whereas CERCLA’s strict, joint and several liability precepts had too often, for many years, meant that all parties involved with a contaminated site bore the risk of disproportionate liability even where some evidence supporting a lesser share of liability existed.

Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.

A: Michael Goldstein, a transactional environmental lawyer in Florida, is a leader in advancing environmental due diligence concepts. Michael recently founded his own firm in Florida, The Goldstein Environmental Law Firm PA. He is one of the best in the business at assessing environmental liability and issues and providing sound legal advice and creative environmental solutions to his clients.

Q: What is a mistake you made early in your career and what did you learn from it?

A: Looking back, I wish I would have pursued a judicial clerkship for a year after law school because for a litigator, an understanding of a judge’s process for analyzing a case and rendering an opinion is critical for ascertaining which arguments and strategy will be effective in presenting your case. While over my career, I have gained a good understanding of the "back-in-chambers" process, I think my early years as a lawyer would have benefited from having direct experience in that regard.